Citation Nr: 1326291
Decision Date: 08/19/13 Archive Date: 08/26/13
DOCKET NO. 11-12 403 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska
THE ISSUE
Entitlement to a total disability rating based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
D. Orfanoudis, Counsel
INTRODUCTION
The Veteran had active service from July 1972 to July 1975.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Lincoln, Nebraska.
In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
During the pendency of this appeal, in September 2010, the RO received additional private medical evidence of the Veteran for treatment with Psychiatric Service, P.C., dated from December 2008 to January 2012. This evidence was submitted without a waiver of consideration by the agency of original jurisdiction. In these circumstances, the law requires that the Board return the appeal to the RO for initial consideration of the new evidence. While the Board could attempt to solicit a waiver from the Veteran in accordance with Chairman's Memorandum No. 01-05-09 (May 25, 2005), as the additional evidence submitted nonetheless triggers VA's duty to assist the Veteran as will be explained below, a remand would be necessary in any case.
In his May 2011 Appeal To Board Of Veterans' Appeals (VA Form 9), the Veteran indicated that he had been unable to work for over five months because of symptoms associated with his service-connected PTSD with major depressive disorder, which is currently rated as 50 percent disabling. As this suggests that his
PTSD with major depressive disorder had undergone an increase in severity with the preceding five months, this would normally warrant referral of the implied claim for an increased disability rating to the RO for adjudication. Here, however, the outcome of the Veteran's claim for an increased disability rating for his service-connected PTSD with major depressive disorder could impact his claim for entitlement to a TDIU. As such, the claims are inextricably intertwined and a Board decision on the TDIU issue at this time would be premature. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). Thus, adjudication of the TDIU claim must be held in abeyance pending the adjudication of the Veteran's claim for an increased disability rating for his service-connected PTSD with major depressive disorder.
Accordingly, the case is REMANDED for the following action:
1. The RO/AMC shall adjudicate the claim of an increased disability rating for the service-connected PTSD with major depressive disorder.
2. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claim adjudication.
3. The RO/AMC will then readjudicate the Veteran's claim of entitlement to a TDIU. The need for additional
development in this endeavor, to include a contemporaneous examination, is left to the discretion of the RO/AMC. If the benefit sought on appeal remains denied, the Veteran and his representative shall be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response.
Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).